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UNEMPLOYED MOTHER WHO TAKES CARE OF HER CHILDREN SEEKS FOR PROPERTY ADJUSTMENT

Allington & Hadden [2020] FCCA 3629 (21 July 2020)

This is an application for property adjustment filed by the mother. The applicant-mother, in this case, alleges that she is not in paid employment and has full-time care of the three children.

Facts:

All that remains to be addressed in the proceedings is a plea for relief with respect to the adjustment of interests in property.

The evidence of the Applicant is that neither of these parties came into the relationship with any assets or resources of significance. At the time of separation, such moneys as the parties held in a joint account were withdrawn by the Respondent. That left the Applicant with the care of the three children and unable to attend to payment of any bills.

All that is left for consideration for adjustment are two things.  Firstly, the superannuation interest of the Respondent. Secondly, a fund of compensation that was received by the Respondent as a consequence of his having himself endured abuse at an early time in his life. The assets available to these parties comprise superannuation of approximately $23,000 and cash funds, whether they still exist or not, of $15,000 from the compensation claim.  Nothing else is identified.

The Applicant’s evidence is clear that she had, throughout the relationship and since the birth of each of the three children of the relationship, been the primary and predominate parent thereto and will continue with the care of those children. Furthermore, The Applicant’s evidence is that she has experienced significant violence at the hands of the respondent, including significant physical assaults and a number of sexual assaults.

Issue: Should the plea for relief to adjust the interests in the property be granted?

Law:

Analysis:

The court is satisfied that the Applicant’s contribution could not be assessed as being less than 50 percent, although in reality, that is pejorative of the efforts that have been made by the Applicant. Her contributions can and should be properly assessed in the range of 60 percent or thereabouts.

The court must have regard to Section 75(2) of the Family Law Act and the factors set out therein. They are matters that largely relate to the present and future and the ability of these parties to meet their and their children’s needs.

The income, property and financial resources of the parents lends support to the Applicant’s case. She is not in paid employment at present and she has the care of three children. She most assuredly will have expenses and impediments to her participation in paid employment in the future, the youngest of those children being not yet three. That lends, as indicated, support to the Applicant and an adjustment in her favour.

All of those facts and circumstances would warrant and support an adjustment of at least 15 to 20 percent, if not more, in favour of Ms Allington.

Conclusion: The plea for relief to adjust the interests in the property is hereby granted.

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